An elephant never forgets? George W. Bush’s lost e-mails

Last week a federal magistrate judge ordered the Bush administration to answer …

The case of the missing e-mail

A federal magistrate judge on Thursday chastised the Bush administration for failing to fully answer questions related to a long-running dispute over missing White House emails. The White House is facing lawsuits from two public interest groups, Citizens for Responsibilty and Ethics in Washington and the National Security Archive at George Washington University, demanding that the White House restore the missing e-mails and put in place systems to prevent further e-mail losses. Administration officials were ordered to provide detailed information about the burdens involved in taking immediate actions to preserve copies of hard drive, tapes, and other media that may contain copies of the missing e-mails.

The ongoing dispute spotlights a part of the executive branch that doesn't often get much attention: its e-mail system. Two laws govern the retention of executive branch documents. The Federal Record Act requires the head of each federal agency to ensure that documents related to that agency's official business be preserved for federal archives. The Watergate-era Presidential Records Act augmented the FRA framework by specifically requiring the president to preserve documents related to the performance of his official duties. A 1993 court decision held that these laws applied to electronic records, including e-mails, which means that the president has an obligation to ensure that the e-mails of senior executive branch officials are preserved.

In 1994, the Clinton administration reacted to the previous year's court decision by rolling out an automated e-mail-archiving system to work with the Lotus-Notes-based e-mail software that was in use at the time. The system automatically categorized e-mails based on the requirements of the FRA and PRA, and it included safeguards to ensure that e-mails were not deliberately or unintentionally altered or deleted.

The Bush White House "upgrades" the e-mail system

When the Bush administration took office, it decided to replace the Lotus Notes-based e-mail system used under the Clinton Administration with Microsoft Outlook and Exchange. The transition broke compatibility with the old archiving system, and the White House IT shop did not immediately have a new one to put in its place.

Instead, the White House has instituted a comically primitive system called "journaling," in which (to quote from a recent Congressional report) "a White House staffer or contractor would collect from a 'journal' e-mail folder in the Microsoft Exchange system copies of e-mails sent and received by White House employees." These would be manually named and saved as ".pst" files on White House servers.

One of the more vocal critics of the White House's e-mail-retention policies is Steven McDevitt, who was a senior official in the White House IT shop from September 2002 until he left in disgust in October 2006. He points out what would be obvious to anyone with IT experience: the system wasn't especially reliable or tamper-proof.

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In detailed testimony to the House Committee on Oversight and Government Reform, he detailed the "journaling" system's flaws. Because the archiving process was conducted manually and in an ad hoc fashion, human error could easily lead to the inadvertent omission of e-mails that are required to be preserved under federal law. Files were "scattered across various servers" on the network of the Executive Office of the President, and there "was no consistently applied naming convention" for the files. It's hardly surprising that things tended to get lost.

Even more troubling, due to a lack of redundancy and proper access controls, anyone with access to the White House servers could have tampered with or deleted the e-mails in the archives. And without adequate logging facilities, there might be no way to determine who might have tampered with the files or what might have been changed.

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These deficiencies were repeatedly brought to the attention of White House systems administrators. In 2002 and 2003, they attempted to retrofit the old, Lotus Notes-based archiving system to work with the new Exchange-based e-mail system. When this effort failed, they awarded a contract to Booz Allen Hamilton to design a new system and to Unisys to implement it. According to McDevitt, the new system was set up and configured during 2005 and was "ready to go live" in August 2006. But the White House CIO, Theresa Payton, reportedly aborted the project in late 2006, citing perceived inadequacies with the system's performance and its ability segregate official presidential correspondence from political or personal materials. McDervitt resigned in protest soon afterwards.

Payton claims that the White House is working on yet another archiving system. But until it's completed—and it's now looking increasingly unlikely that it will be operational before the end of the administration—the White House will lack an automated system for complying with the requirements of federal law.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits